March 29, 2018
from the United States District Court for the Western
District of Wisconsin. No. 3:17-cr-008 - James D. Peterson,
Bauer, Flaum, and Manion, Circuit Judges.
Gregory Bethea pleaded guilty to possessing a counterfeit
access device in violation of 18 U.S.C. § 1029(a)(1).
Due to serious health issues, Bethea appeared via
videoconference at his combined guilty plea and sentencing
hearing where he was sentenced to twenty-one months'
imprisonment. He now argues his sentence should be vacated
because Federal Rule of Criminal Procedure 43(a) required him
to be physically present during his plea. We agree, and thus
reverse and remand for further proceedings.
2014, Bethea used fraudulently obtained credit cards to
purchase merchandise at retailers in Wisconsin. A grand jury
subsequently indicted him for possessing a counterfeit access
device in violation of 18 U.S.C. § 1029(a)(1). Bethea
agreed to plead guilty in May 2017.
December 1, 2017, the district judge conducted a combined
guilty plea and sentencing hearing. The judge presided from
his Madison, Wisconsin courtroom, while Bethea appeared via
videoconference from Milwaukee because of his health issues
and limited mobility. After conducting a plea colloquy, the
judge accepted Bethea's guilty plea and moved to
sentencing. Although the judge acknowledged Bet hea's
health as a complicating factor in imposing a sentence, he
remained bothered that Bethea's illegal conduct allegedly
continued well after his health issues supposedly worsened.
Ultimately, the judge sentenced Bethea to twenty-one
months' imprisonment, which fell at the bottom of the
Guidelines range of twenty-one to twenty-seven months. Bethea
timely appealed, arguing that the district court was not
permitted to accept Bethea's guilty plea via
review legal questions, such as whether the use of
videoconferencing at a sentencing hearing violates the
Federal Rules of Criminal Procedure, de novo. See United
States v. Thompson, 599 F.3d 595, 597 (7th Cir. 2010).
Bethea argues that his combined guilty plea and sentencing
via videoconference violated Federal Rule of Criminal
Procedure 43(a) because he was not physically present in the
courtroom during his plea. He argues this was an unwaivable
obligation, and the court's failure to adhere to the
requirement constitutes per se reversible error. Thus, he
maintains that even if he consented to the form of
proceeding, we must still vacate his plea and sentence.
of the Federal Rules of Criminal Procedure governs the
circumstances under which a criminal defendant must be
present in the courtroom. The Rule states that "the
defendant must be present at … the initial appearance,
the initial arraignment, and the plea." Fed. R.
Crim. P. 43(a) (emphasis added). The presence requirement is
couched in mandatory language-"the defendant
must be present." Id.
(emphasis added); see also In re United States, 784
F.2d 1062, 1062-63 (11th Cir. 1986) ("The rule's
language is clear; the rule does not establish the right of a
defendant to be present, but rather affirmatively
requires presence." (emphasis
the Rule's presence requirement does contain several
exceptions and waiver provisions. See Fed. R. Crim.
P. 43(b), (c). These exceptions include, for example, when a
proceeding involves the correction or reduction of a
sentence, see Fed. R. Crim. P. 43(b)(4), or when the
defendant is voluntarily absent during sentencing in a
noncapital case after initially attending the trial or plea,
see Fed. R. Crim. P. 43(c)(1)(B). But none of these
exceptions apply to the situation before us and are generally
limited to the sentencing context. Moreover, Rule 43 was
amended in 2011 to permit videoconference pleas for
misdemeanor offenses. See Fed. R. Crim. P.
43(b)(2) (stating that when the offense "is punishable
by fine or by imprisonment for not more than one year, or
both, and with the defendant's written consent, the court
permits … plea … to occur by video
teleconferencing or in the defendant's absence").
That the drafters did not include that option in the felony
plea situation is telling.
other circuit has addressed whether a defendant can
affirmatively consent to a plea by
videoconferencing. However, four circuits have addressed
whether a district court can require it. All have held that
Rule 43 obligates both the defendant and the judge to be
physically present; the outcome is the same whether it is the
judge or defendant who appeared via videoconference. See
United States v. Williams, 641 F.3d 758, 764 (6th Cir.
2011) ("The text of Rule 43 does not allow video
conferencing" and the "structure of the Rule does
not support it"); United States v.
Torres-Palma, 290 F.3d 1244, 1246-48 (10th Cir. 2002)
("[V]ideo conferencing for sentencing is not within the
scope of a district court's discretion.");
United States v. Lawrence, 248 F.3d 300, 303-05 (4th
Cir. 2001); United States v. Navarro, 169 F.3d 228,
238-39 (5th Cir. 1999). We agree with our sister
circuits' reasoning and extend it one step further. We
thus hold that the plain language of Rule 43 requires all
parties to be present for a defendant's plea and that a
defendant cannot consent to a plea via
decision is supported by the unique benefits of physical
presence. As the Sixth Circuit explained, "[b]eing
physically present in the same room with another has certain
intangible and difficult to articulate effects that are
wholly absent when communicating by video conference."
Williams, 641 F.3d at 764-65. Likewise, the Fourth
Circuit reasoned that "virtual reality is rarely a
substitute for actual presence and that, even in an age of
advancing technology, watching an ...